W 0003/93 (Re-establishment of rights) of 21.10.1993

1. By analogy with the principles developed by the Enlarged Board of Appeal in decision G 1/83 (OJ EPO 1985, 60, points 5 and 6 of the reasons) for interpreting the EPC, Article 48(2) PCT should be construed to mean that in the event of a delay in meeting the time limit laid down in Rule 40.3 PCT the same legal remedies are available as in the case of failure to observe other comparable time limits under the PCT or EPC (point 1.1 of the reasons) (see also W 4/87, OJ EPO 1988, 425, point 7 of the reasons).

2. Re-establishment of rights restores the legal situation to that existing prior to the decision which declared the protest inadmissible, i.e. it destroys the legal validity of the decision, which accordingly need not be set aside or amended (point 2.4 of the reasons).

3. The purpose of the protest procedure under Rule 40.2 PCT is to enable the justification for the invitation to pay to be submitted to substantive review; the only issue to be examined therefore is whether, considering the reasons given by the International Searching Authority (ISA) and the submissions made in support of the protest, retaining additional search fees was justified. The Board cannot therefore investigate ex officio whether an objection of lack of unity would have been justified for reasons other than those given (point 4 of the reasons).